Relationships: Quality is Not a Luxury

I am sure you have heard the phrase, “I am professional; I do not have to like you to be able to work with you.” While there is obviously some level of truth to this saying, it clearly does not describe an ideal situation. The simple fact is that business is much easier to conduct when relationships amongst the players are positive. I believe that all of us find it easier to work when our professional relationships are marked with respect, trust and a positive affect.

This is the third in a series of four e-zines which are looking at what I call the foundational elements for creating a great workplace. The first of the four looked at the organizational culture, the second at the concept of productivity and the last will look at growth and advancement. This e-zine focuses on the quality of relationships under the belief that attractive workplaces are marked with great relationships. While it may be simplistic, I believe it is fundamentally true to say that all great things, at least in a business sense, flow from the quality of relationships. So what constitutes “quality?” Read on.

The Speed of Trust is a new book by Stephen M. R. Covey. The basic premise of this book is that business transactions and business activity all work more efficiently when there is a high level of trust in the relationship of the players. He makes a very compelling argument. In the absence of trust, everything slows down while the parties go to great lengths to do their “due diligence.” I have always believed that trust, in the context of business activities, is a reflection of reliability. Or, how about this from Confucius: If language is not in accordance with the truth of things, then affairs cannot be carried on to success. Double speak will destroy trust very quickly.

In 2005 Marcus Buckingham and Curt Coffman released their book First Break All the Rules: What the World’s Greatest Managers do Differently. Based on a massive amount of data collected by the Gallup organization, this book explores what organizations successfully do to keep their top performers. Not surprisingly, having a great relationship with one’s supervisor and having a close friend at work are two of the top five reasons why top performers stay.

One of the series of courses in the MBA program that I teach at Portland State University is in the area of labor relations. Does it surprise you at all for me to say that the quality of the relationship between the labor organization and the management is a critical component in how quickly and effectively they are able to resolve problems? If their relationship is strained, marked with distrust and full of animus, problem solving is often a tortured event. On the other hand, even when disagreement is substantial, where the parties respect each other they are far more likely to successfully work through the problem and find a solution acceptable to both.

Enough talk about why quality relationships are an essential part of a great workplace. The important question focuses on what can be done to create positive relationships. I have a thought or two to share with you in response.

To begin, I read somewhere in the distant past that many of the effective approaches to improving the quality of relationships are counter-intuitive. That is, these approaches involve doing the exact opposite of what we feel like doing. One of my favorite Abraham Lincoln quotes is his statement, “I find when I do not like a man that I need to get to know him better.” This is what I believe is meant by counter-intuitive. I usually find that when I do not like a man, the last thing in the world I want to do is to get to know him better (think of your favorite political whipping person). Yet most of us, when we study the matter, probably agree with the sentiment expressed by Lincoln.

Also, what I have found about building relationships is that the Robert Sutton book, The Knowing-Doing Gap definitely applies – knowing what to do is easy; it is the doing that is hard. Don Miguel Ruiz, in his marvelous book The Four Agreements, repeats on a number of occasions that each of the “agreements” are simple, very powerful and hard to do; with the first (be impeccable with your word) being the hardest.

I agree and, therefore, put before you three simple, powerful, counter-intuitive and hard to do suggestions.

First, Roger Fisher and Scott Brown, in their book Getting Together: Building a Relationship that Gets to Yes provides two key thoughts. They argue that a quality relationship should be pursued separately from the business issues that are being dealt with. Trying to build a relationship at the same time that one is dealing with a sticky business problem is difficult at best. Moreover, it is possible to build and maintain a good relationship even where the parties disagree on an issue. Respectful disagreement is possible and in almost every case will lead to better solutions and outcomes than disrespectful disagreement.

Additionally, Fisher and Brown are great proponents of what they call “unconditionally constructive behavior.” This is what I consider to be the counter-intuitive aspect of what they are proposing. Typically, we condition our constructive behavior upon the positive behavior of the other party. If they are less than honest, we are less than honest with them. If they fail to consult with us, we choose not to consult with them. According to Fisher and Brown, everyone loses when you participate in this game. One engages in unconditionally constructive behavior because it is in your best interest to do so. There is no benevolence or altruism involved. For example, one acts reliably even if the other acts unreliably because to act reliably is in your best interest. There are no positive payoffs from acting unreliably regardless of what the other party is doing.

Second, dealing with grumpy, grouchy, demanding people is frustrating and usually produces personal fantasies filled with revenge themes – how can I best get even with this person. Here is a counter-intuitive idea from the book and training film titled Fish! One of the most popular training films ever and based on a fish market at the famous Pike Place Street Market in Seattle, Washington, Fish! encourages us to “make the day” of the contentious person. Instead of “getting even” strategies, why not pursue the goal of making the individual’s interaction with yourself the best part of that person’s day? Two amazing things happen when you pursue this goal. One is that you may find an astonishing transformation in the person you are dealing with. The other is that you will feel much better personally when pursuing a positive strategy as opposed to being consumed by negative thoughts and actions.

Remember what I said earlier: these are simple, powerful concepts that are difficult to implement. It is hard to want to “make the day” of a person standing in front of you who is doing everything possible to make your day miserable.

Finally, I want to set forth Robert Greenleaf’s thoroughly discussed topic of servant leadership. Greenleaf’s work emphasizes that leadership is most effective when it is not viewed as power over subordinates, but rather is seen as being in service to those around you. Since Greenleaf’s original work in the nineteen eighties, there have been a multitude of other books written on the same subject. The point is always the same: being in service is far more effective than lording it over.

Applying the same reasoning to relationships, I would like to promote servant relationships. Tim Sanders' book Love is the Killer App provides excellent ideas on how one can properly express love in the workplace by being in service. Sanders believes that love is the killer app because it ultimately is the most powerful business tool.

A closing thought; Robert Heinlein is one of my favorite science fiction writers. Before his death he wrote almost 100 books. His best known character is a man by the name of Lazarus Long (still living at the age of 3,000). Lazarus Long is an interstellar warrior along the lines of Hans Solo. There is a little book called The Famous Quotations of Lazarus Long and in it you will find:

Always remember this; your enemy is not wrong in his own eyes. If you keep this in mind you may be able to make him your friend. If not kill him, but not with hate.

Whenever I use this quote I always remind the audience that on a planet far, far away killing may not be a problem. On earth it is a different matter. So, go easy on the killing part. There are two aspects of the quote, however, which I am very fond of. First, there is the counter-intuitive concept of turning your enemy into your friend. Second, and a good place to end this column, hate is a sure destroyer of relationships and it has no positive outcomes. Even when an organization is confronted with the necessity to take decisive action against an employee, a negative affect does not have to be a part of that process.

Next Month: Growth and Advancement as a component of the great workplace.

Reader Question

We are downsizing our agency by eliminating some programs. Most of the employees in those programs will be laid off. A substantial majority of the employees that will be laid off are over 40, while a significant majority of those retained are under 40. Are we in trouble?

Obviously you are concerned with what we call age discrimination. The ADEA (Age Discrimination in Employment Act) is the Federal statute of interest, and there may very well be state statutes that would apply. You should definitely assess your situation to determine whether there is a potential problem of sufficient risk that it warrants seeking specific legal advice. For example, you use the words “substantial majority.” What is the total number that you are laying off and what is the actual percentage of senior employees being laid off, as compared to the percentage of senior employees being retained? Is there a significant wage gap between the two groups? The arithmetic itself may make you vulnerable. If so, I would definitely want to check with a knowledgeable attorney as to how the law relates to your particular situation and as to whether there are court decisions that may give guidance on the matter.

While I will leave it to the attorneys to give specific council, there are some general comments that may be helpful with regard to employment and age discrimination. First, with regard to the concept of employment discrimination, there is both the issue of disparate treatment and disparate impact, both of which are prohibited by the ADEA. Disparate treatment involves singling out a protected group for adverse action. Disparate impact concerns what appears to be a neutral action, but one that disproportionately, adversely impinges on a protected class (senior employees being a protected class). Depending on the specific facts of the situation, either one of these two could be present in the situation described in the question. Most likely, however, the situation involves a question of disparate impact.

The antidote for a claim of disparate impact is a valid argument by the employer that actions were taken for a bona fide business reason. Be careful, what may appear on its face to be a neutral action (not favoring one group over another) may be seen quite differently by the courts. Here are some questions you might want to ask yourself:

• Why are we closing these programs while keeping others?

• Will we be reopening, in the near future, the same programs and hiring younger employees?

• How is it that the programs we are closing have the senior employees while the programs we are keeping have the junior?

• Are we denying bumping rights to our senior employees while in the past we have been open to finding positions for the senior employees in the programs we are retaining?

Answering these questions is important to fully understand the implications of what you are doing and to fully explore your vulnerabilities.

Books of the Month

Professional Growth: Marketing departments specialize in writing powerful, sticky messages. Regardless of your position, however, getting your messages to stick can have a substantial payoff. I found the following book very useful even though I have little to do with marketing.

Made to Stick - Chip Heath and Dan Heath

Personal Growth: Are you intrigued by the debate between science and theology? A Joyful Theology is a simple book with a powerful and deep message. I like books that expand your thinking and leave you feeling joyful.

A Joyful Theology – Sara Maitland

Quote of the Month

Instead of loving your enemy, treat your friend a little bit better.

Edgar Watson Howe

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Making Work a Better Place to Be, Revisited

In April of 2006, I wrote an e-zine titled Making Work a Better Place To Be. That e-zine marked a transition into both a new format and a specific focus. My goal was to develop each topic with the underlying purpose of making the information helpful in creating a more dynamic, constructive workplace. I have decided that, for a couple of reasons, it is time to revisit that topic.

The workplace, of course, is defined by the people in your employee. Obviously, therefore, the concept of making work a better place is specifically focused on how employees experience the workplace. From a leadership or HR perspective, it is very easy to focus on specific factors such as compensation, benefits, employee orientation, performance management and other such concerns. What about the bigger picture, however?

My father was a minister and, like most preachers, loved a good story. One of his favorites, that I heard many times, involved the building of a great cathedral – think Notre Dame of Paris.

In the story, a “reporter” decided to write an article on the building of the cathedral. In order to do so he determined to interview some of the workers on the project. Talking to masons, glazers, carpenters and other craftspeople, he asked them to explain what they were doing. Each, in greater or lesser detail, described the duties of their craft. This went on until he interviewed a common laborer whose job it was to dig trenches in which to lay drainage tile. Without hesitation, when he was asked the question, the man responded, “Why sir, I am building a great cathedral.”

For all of us, it is easy to get caught up in the daily grind of activities, losing sight of the bigger picture. Are we simply performing the functions of our craft with little awareness of a larger goal? Or, are we consciously aware that our efforts are contributing towards building a great workplace? I am one who believes that being able to see a bigger picture, at least some of the time, will have a significant impact on organizational effectiveness.

Several years ago I listen to a presentation by a highly respected consultant. He provided some insights which I found very useful. One point he made is that there is an endless buffet of tips for leaders. A difficulty is that we often do not distinguish between strategy and tactics. Strategy is the overall plan for creating the desired end (in our case, building a great workplace).

Tactics are individual steps needed to implement the strategy. Tactics are useful, therefore, only to the extent that they support the chosen strategy. Thus, tactics should support a strategy designed to achieve an end goal. I am often dismayed when I see tactics chosen that actually sabotage the strategy. Anger, frustration and ego appear to be some of the motivators for these tactics.

So, are we just doing our craft? Or, are we building a great workplace? Check out my new web site: www.makingworkabetterplacetobe.com. I have committed to maintaining this site as a noncommercial venue to provide articles and ideas related to the creation of a great workplace. The site is new and will be constantly upgraded as we develop material. Most importantly, I am encouraging you to contribute to the website. I welcome your suggestions, articles and other submissions. Obviously, I will retain editorial control but want to make the information as broadly based as possible.

One of the first things you’ll notice when you go to the site is that I have subdivided the larger topic of a great workplace into four primary concerns. In my view, a desirable workplace is dependent on building a great culture, high levels of productivity, quality relationships and the opportunity to grow. There is nothing original in this group of four; I call them the fundamentals. Like any variable that can be called a fundamental, the important issue is not originality but rather effective implementation. In other words, the best workplaces are good at the fundamentals. This is not to say that creativity in implementation cannot be helpful. Rather, the point is that there are basics that must serve as the foundation for a great workplace. I am providing a quick introduction to each of the four foundational principles with the promise to expand on each in future editions of this e-zine.

1. Much is known about the relationship between organizational culture and organizational performance. In my work I have run across two different definitions of organizational culture: 1) “the way we do things around here,” 2) the point at which the work group says “no.” One fact for sure in any organization, effective and long lasting change occurs only when the culture buys into the new program. Most importantly, culture is little influenced by edict and policy. Rather, the culture must be built and/or influenced overtime. I will have much more to say on this last point in the next e-zine.

2. Feeling good about your work is difficult if you believe that most of your effort during the workday is wasted. I absolutely believe that employees want to experience the sense of accomplishment that comes from producing desired outcomes. Work that is value added feels good. Work that appears to produce no useful end result is frustrating and demoralizing. While I will write much more on this topic at a later time and encourage your submissions on this point, for the present I want to emphasize that a great workplace has more to it than a warm supportive environment; employees must feel that their time is well spent.

3. Love is a topic which once again we can discuss in the context of the workplace. Not in the sense, of course, of a romantic relationship or something illicit but in the context of how employees treat each other. Are you surprised? Tim Sander’s marvelous best seller, Love is the Killer App helped to encourage the reconsideration of the importance of positive affection between employees and the appropriate behaviors that should accompany that affection. In my view, you cannot have a great workplace if your employees do not genuinely care for each other.

4. General systems theory takes the position that an organization is either growing or dying. The same can be said for employees; they are either growing or stagnating. Much has been written about the learning organization and how to implement those strategies that will move the organization and its people in that direction. Without question, a great workplace energizes its employees by promoting growth and opportunity.

I am looking forward to using both the web site and this e-zine to continuing to develop these four concepts and others related to making work a better place to be.

Next Month: obviously, since I have just finished reviewing what I consider to be the four foundational elements of a constructive workplace and have indicated my intention to expand on each in a separate e-zine, the next e-zine will focus on the first of the four: building a positive culture.

Our company recently bargained its first contract with a union, and I’ve just been given the task of representing our position in a grievance over a discharge. It is my understanding that I, as the employer representative, have to meet the burden of proof. Isn’t this backwards? I thought that the party bringing the grievance had the responsibility of proving its case.

There is an old saying in labor relations, “management acts, the union reacts.” Under this concept, the union has the right to challenge a management action when it believes that the action has violated the labor agreement. Thus, in challenging the action, the union carries the burden of proving the violation. If the matter goes to arbitration, then the union goes first with its presentation.

This approach, however, is not applied in a matter of employee discharge. Rather, a regular status employee is viewed as having a right to his or her job and, if the employer wishes to take it away, then a good case needs to be presented towards that end. As a result, if you are in an arbitration proceeding where the discharge is being contested, the employer will be asked to go first with its presentation and it will need to present “just cause” (a well documented case with solid business related reasons) for the termination.

Even if your employees are not represented by a labor organization, you may still be required to present an affirmative case for a discharge. This could happen, for example, related to an EEOC complaint or regarding an unemployment compensation filing. What is important to recognize is that each venue (labor arbitration, EEOC, unemployment) has a different set of decision-making criteria. Thus a solid case for discharge presented to the labor arbitrator may not be a basis for challenging the employee’s petition for unemployment compensation. Likewise, an employer can prevail in a discrimination complaint before EEOC even when it is not successful before the labor arbitrator. Obviously this leads to the conclusion that if the employer wishes to self-represent in all three arenas, then it needs to develop the knowledge necessary to make an effective presentation, a presentation appropriate to the venue. Otherwise, competent professional assistance needs to be obtained.

Quote of the Month:

To be creditable, we must be truthful.

Edward R. Murrow

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In Defense of the Trial Service Period

Often times new e-zines come from a problem presented to me either through the arbitration process or one of my other professional activities. This e-zine is the second in a series of three related to the trial services period. During this past week I ran into a familiar problem dealing with the trial services period. In this case, the employer has a 90 day trial services period and a practice of dismissing an unsuccessful employee on the 89^th day of employment; perfectly acceptable practice per the last e-zine. As a matter of policy, no reasons are given for the dismissal other than the statement that the employee has not successfully completed the trial services period. Problem! In this case, the employee was deaf; a fact that constitutes a disability under the ADA. The plot thickens, the employer, during the prior two years, has only dismissed two employees during the trial services period; the instant employee and one prior. The prior employee was also deaf. Now we are in trouble.

While the courts have long recognized, as was discussed last month, that an employee can be dismissed without cause during a bona fide trial services period, the courts have never found that a trial services period protects the employer against the requirements of the ADA. The case is still pending as an EEOC complaint but my guess is that the employer is in trouble on this one.

While the ADA does not protect employees who fail to carry out the essential tenets of their job, the employer has a major burden to both demonstrate that it does not have an inappropriate pattern of unlawful discrimination and that the decision to dismiss the employee on the 89^th day was based solely on permissible reasons. For the purposes of this e-zine, I want to emphasize that the requirements of specific statutes will always trump your personnel policies – including the portion on Trial Service. You must always meet the minimum requirements of law in the way that you apply your policy.

The important point of this month’s e-zine, however, is not to focus on the legal issues concerning the trial services period, but rather to look at the possibilities. The trial services period should be all about performance. True, one dimension of the issue of performance concerns whether an employee can demonstrate the ability to perform at an acceptable level. But, when focus is attached exclusively to the right of dismissal, it misses the potentialities of the trial services period.

While the unfettered right of dismissal is an important element in a trial services period, it cannot be allowed to overshadow the more significant element which is the use of the trial services period to light a fire in new employees. If what the employer seeks is high performing employees, constant reminders that the new employee “may not make it” hardly seems to be an incendiary practice. Rather than dismissal, the focus during trial service periods should be on practices that help insure a long-term commitment to high performance. Three thoughts come to mind to help build this practice.

First, in the book First Break All the Rules, the authors cite extensive research that indicates the strong correlation between high performance and a relationship between the employee and the immediate supervisor. I do not think these research results are surprising as it makes logical sense that we all work better in an environment of positive social regard. If an employee trusts, respects and/or appreciates his or her immediate supervisor, obviously the employee will be more open to direction and coaching. The trial services period is clearly the time to establish those qualities in the relationship. What I am suggesting is that attention to relationship is as important, in the long run, as attention to work performance.

Second, the trial services period is an ideal time to bring the employee into alignment with the culture. While a more extended discussion of the process by which alignment can be achieved is a good subject for a future e-zine, I want to make two quick observations at this point. First, employees learn about culture through the modeling efforts by supervisors and fellow employees. Thus alignment can only be achieved through the involvement of team members. However, there is a double advantage to the employer of including team members in the process of creating alignment. Not only will the group process help bring new employees into alignment; it will also reaffirm to existing employees the importance of the culture.

Third, completing the trial services period has to mean something. One of my favorite definitions of happiness is “happiness is the successful completion of a worthy goal.” When a pilot successfully completes training, he or she receives wings to memorialize that feat. Having personally gone through that process, I have a clear memory about the feeling of accomplishment. In my view, that feeling of accomplishment is needed by the employee to fuel commitment and a high level of future performance. The employer needs to do something to show that passing from trial services to regular employment is a significant event.

Finally, you probably have guessed from reading this e-zine that the question of how to most successfully structure and implement a trial service period is my current, top research interest. I am convinced that the trial service period is the most effective time for the employer to head off performance problems by focusing on procedures that can help insure performance successes. The new employee is generally the most open to responding to these efforts. I am currently working with a couple of clients to completely redesign their whole approach to the trial services period. If any of you are interested in the specifics of what we are doing, please let me know.

Next month we will complete the three month e-zine series on trial service periods.

Quote:

What lies behind us and what lies before us are tiny matters compared to what lies within us.

Ralph Waldo Emerson

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Thoughts on Trial Service Employement

Private sector employment includes non-profits (private corporations with non-profit status). The law, however, does not always treat public sector employment the same as private sector employment. When writing these e-zines, I have attempted to carefully draw this distinction, when the distinction is important. Last month, I wrote an e-zine on severance pay. Unfortunately, as one of the recipients kindly pointed out in a return e-mail, I overlooked the fact that severance pay is by and large forbidden in public employment. Various federal and state statutes prohibit the “gifting” of public funds and severance pay is typically considered a gift – no work, no pay. Thus, while there may be a gray area over whether the employee must work the last few days before leaving employment in order to receive full compensation, clearly multi-month severance packages cannot be put together for public employees. I feel much better now that I have cleared the record on this issue.

On to this month’s topic. On August 10, of this year, one of my colleagues and I will be speaking at a national conference in Las Vegas, Nevada. For the record, I most enjoy speaking at conferences in: New York, Orlando, Anaheim, Las Vegas, and anywhere in Hawaii. The focus of the presentation is on managing the trial services employee. The presentation will look not only at the organizational and legal issues around the trial services period but will also map out steps that can be taken to initiate the new employee into the organizational culture. The early work that I have completed to prepare for this presentation has led me to believe that it is a topic worth discussing in the e-zine. Specifically, I intend to use the next three or four e-zines to construct an outline for effectively managing the trial services employee. In this issue I will begin by looking at two critical issues: 1) what should we call the trial services period, and 2) what significance does employment law place on the trial services period.

What to call it?

Most of the personnel handbooks that I run into still call the trial services period a “probationary period.” For a number of reasons, I believe that using the term “probationary period” to discuss the first stage of an individual’s employment is a very poor title. I recognize that it is commonly used this way but believe the term “probationary” has too much connotation of wrong-doing. Felons serve a probationary period in lieu of jail time or they are placed on probation post jail. Employees are put on probation when they have done something wrong. Thus, starting employment on probation carries the unnecessary and inappropriate sense of wrongdoing.

The term “trial services period” carries with it the concept that one is being given the opportunity to demonstrate capabilities. This is a time of training and development. It is also a time that both parties, employer and employee, can assess whether the position is a good fit for the employee. Most importantly, it is a golden opportunity for the organization to build off of a new employee’s enthusiasm for the job and appreciation for being given the job.

Significance of Employment Law

From the standpoint of employment law, there are good reasons why an employer benefits from distinguishing between an early trial services period and regular employment. First, either through a labor contract or through the organization’s personnel policies, most employees are afforded a grievance procedure by which to bring a formal complaint. Almost all of the labor contracts that I have reviewed clearly deny to the trial services employee the right to grieve dismissal during the trial services period. In other words, if you remove the trial services employee from his or her employment, that separation cannot be challenged. If you do not have a labor contract or where one does not apply, personnel policies can still distinguish between the rights of the trial services employee and the rights of the regular employee as regards the filing of a formal complaint.

Second, in the landmark Supreme Court case called Loudermill (1985), the Court emphasized that employment status in the public sector was a creation of the policies and rules promulgated by the employer. The Court goes on to emphasize that once the employer has created an employment status that carries with it a sense of permanency (regular employment), then that employee has a property interest in their employment and must be granted full due process for a discharge. This decision by the Court, in the view of legal authorities, clearly permits the employer to establish a trial services period that would carry with it no constitutional due process issues rights (no expectation of permanency thus no property interest).

While the Loudermill decision applies only to public sector employment, I believe the Court’s logic in that decision has broad applications. There are many good reasons why it is advantageous to make a clear distinction between the permanency of regular employment and the impermanency of trial services. While the next e-zine will look at the importance of making that distinction in a positive way, as a general matter of employment law it is often useful to make that distinction.

Reflecting over the points outlined above, I am closing this e-zine by offering three suggestions:

1. Review your personnel policies and/or your labor contract and determine whether the word trial services better reflects the early period of employment in your organization than does the word probationary period. If you have not made the change, is it possible to do so?

2. Review the language that describes the trial services period (probationary period) in your personnel policies or labor contract. Is it overly negative, focusing on consequences for the failure to perform? Without diminishing a clear message that separation can occur if the employee is not successful during the trial services period, can the language be written to emphasize that this is an opportunity for the new employee to shine?

3. Does the language of your labor agreement and/or personnel policies clearly indicate that the separation from employment for the trial services employee is distinctly different than the discharge of a regular employee? In my view, an organization ought to discharge a regular employee for cause while it separates a trial services employee for failure to pass the trial services period. The two are distinctly different. Similarly, the employer should not be using formal discipline on the trial services employee. If you cannot bring forth the desired behavior with coaching and training, then the employee has not passed trial services and should be removed from service.

One last point, personnel policies/labor contracts also use the concept of a trial services period (probationary period) for a promotion. Again, I believe it wise to focus on the positive. One difference related to the trial services period for promotion will involve the right of an employee to return to a prior position if he or she fails the trial services period. I cannot imagine that one would want to promote an individual if he or she was doing a poor job in their existing position. Thus, it seems to me that the right of return makes good sense. The policies, however, should be clear on this point.

As noted above, in June we will turn to the “art” of successfully managing the trial services employee and the organizational benefits that derive from putting a greater emphasis on working with the new employee.

Quote of the month:

We cannot teach people anything;

we can only help them discover it.

- Galileo

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The Facts on Severance Pay: What's Required and What's Advisable

Severance pay has recently become a topic of discussion with a client and, as a result, I took some time to do a little research. Severance pay is extra compensation (treated like regular wages) paid to employees as a result of involuntary termination or as an enticement to voluntary termination. Since severance pay is treated as wages, it would go on the employee’s W-2 just like any other wage. If you are in a situation where you might consider offering or providing severance pay, there are a few facts that you should be aware of.

1. Severance pay is not covered under federal wage and hour (FISA) legislation but is covered in a few state statutes. For example, the State of Maine requires severance pay in the case of relocations or shutdowns. Therefore, an employer should check with their state department of labor before determining whether to offer severance pay and, if offered, how much to provide.
   
   

2. While many employers provide severance pay for managers and executive level employees, very few provide it to hourly employees. This distinction may very well be an issue addressed by state statute, so one should be careful in making this decision.
   
   

3. Severance pay is usually provided as either a matter of the employer’s general practice or a specific policy. Only infrequently is it provided on a case-by-case basis.
   
   

4. Severance pay, in many situations, would be better considered as a severance package. Within this package you might have matters related to insurance, pension benefits and severance pay. If so, the employer should keep in mind that parts of the severance package may be a requirement of statute and other parts a voluntary action on the part of the employer. The employer should maintain the ability to separate the voluntary from the required in the event that agreement cannot be reached on the whole package.
   
   

5. Frequently, companies that provide a substantial severance payment will condition the payment on the employee’s agreement not to take any legal action against the employer. In such a case, the employer should be aware that the employee has the right to refuse the severance pay and proceed with the legal action – assuming that legal action can be taken. At least one source that I found indicated that the courts are more responsive to a no-lawsuit restriction on severance pay when it is a matter specifically addressed in the company’s policies.
   
   

6. Obviously, if the employee has the right to accept or refuse the severance package then the employee also has the right to negotiate the terms. Since there is no duty to bargain, the employer can reject the employee’s efforts to negotiate the severance package or can attempt to take advantage of what might be an opportunity to reach agreement that would ultimately save the employer a substantial amount of money and be to everyone’s advantage.
   
   

7. The amount of severance pay is typically related to the number of years of service; with a cap often being placed on the total number of years for which credit will be given. For example, a one-year employee may be granted a one-week severance package, a ten-year employee might be given a ten-week package and a seventeen year employee a fifteen week severance pay benefit where the company has a fifteen week maximum benefit. Since severance pay is not a matter of law, there is no rule as to what is reasonable. Consistency in the employer’s severance pay activities would be advisable.
   
   

8. Generally speaking, you should not expect an employee to make a final decision with regard to severance pay the first time you make the offer. See it as a multi-session negotiation. For example, you might have an initial sitting with the employee in which you lay out the broad perspectives of your severance package with the conclusion that you don’t want any response from the employee at this time but would rather have the employee take it and study it for a week and come back so that you can discuss it. A week later you may sit down with the employee and work out elements such as matters related to pension, medical insurance or other things involved in this package with additional discussions over the amount of severance pay and the no-lawsuit provision. You can then schedule an additional follow-up sessions. On the other hand, the employee may be fully willing to resolve all matters during the first or second session and, if so, proceed to settlement. Always remember that time means everything in negotiations and what a person is not willing to accept at one point in time they may be fully willing to accept at some later point in time.
   
   

9. Severance pay can be given as a one-time payment or in multiple payments. Multiple payments have substantial value if there are conditions that the employee needs to meet that are part of the severance package.
   
   

10. The following is some sample severance pay policy language that you can tweak to meet your specific situation:

SEVERANCE PAY

A. An employee who has been employed for a continuous period of at least 18 months and who is involuntarily separated from employment for reasons other than misconduct or unacceptable performance and who is not eligible for an immediate annuity shall receive severance pay.

B. The amount of severance pay shall be one week’s salary for each year of the first fifteen years of service and two weeks salary for each year of service after fifteen. No severance pay will be granted for service after the twentieth year.

C. Upon separation, the employer shall pay the employee’s severance pay at monthly intervals in an amount equal to his or her basic monthly salary until such time as all severance pay that is owed has been fully paid to the employee.

After having spent a substantial amount of time researching this question, I have arrived at the conclusion that for most of my clients it is wiser not to have a specifically written severance policy than it is to have such a policy. A specific severance pay policy may unduly restrict a small employer. Also, there is nothing that prohibits the negotiations of severance pay, on a case by case basis, and conditioning those negotiations on the specific facts of the involuntary separation.

Finally, since I am self-employed, I have no one with whom I can negotiate my own severance pay. I decided to resolve this matter by setting up a personal severance pay fund in the event that I terminate myself and I am beginning to set money aside in that fund. In the event that any of you feel sorry for me, have an overwhelmingly generous spirit and would like to contribute to my personal severance pay fund, I will gladly accept such donations.

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Guidelines for the Use of Administrative Leave

A recent consulting activity raised the question of the appropriate use of administrative leave. Sometimes it may be necessary to place one of your employees on leave. The most common reason for doing this is to safeguard the employer during an investigation into allegations of misconduct. Administrative leave includes both the temporary removal of the employee from all job duties or the temporary re-assignment of an employee to a different job pending an investigation. Administrative leave is not a disciplinary action, and it should not harm the employee’s record or performance appraisal. If the investigation confirms wrongdoing on behalf of the employee, disciplinary action should be imposed following the investigation.

You, as the employer, may question whether the nature of the alleged infraction is significant enough to warrant placing the employee on administrative leave. The critical question is not the seriousness of the infraction, but rather the vulnerability of the employer. If the nature of the infraction is such as to create a potential liability for the employer if the employee continues to perform his or her duties during the investigation, then administrative leave is appropriate. For example, if you believe an employee is embezzling money from the organization, the minimum prudent response is to remove that employee from a position where he or she can continue to take money. Similarly, an employer would not allow an employee to continue to drive a school bus during an investigation into a drunk driving charge. Were an accident to happen, the liability would be enormous.

In implementing an administrative leave, there are a few basic rules to follow:

1. Your actions must be consistent with your personnel policies and/or your labor contract.

2. You should have a consistent policy. Paying one employee who is on administrative leave and not another could lead to legal action or allegations of disparate treatment. Also the employer should be clear about whether an employee can use any accumulated vacation or other paid leave to compensate for an unpaid administrative leave.

3. In making a determination of whether administrative leave is appropriate, you should consider the potential legal liability of allowing the employee to remain at work, the state of mind of the employee, and whether the employee could potentially cause more harm or disruption if he or she remains at work during the investigation.

4. The law does not require that you pay an employee when they perform no work. Most employers, however, find it wise to, at minimum, reimburse an employee for lost wages if he or she is exonerated. Otherwise you may find yourself dealing with a bitter employee.

5. If you call the employee in for an investigative interview, you must pay the employee for this time. I recommend a full day’s pay as an incentive for cooperation.

6. If an incident occurs during the workday, you should send the employee home with pay for the remainder of the day. If the employee is exempt from overtime, you should always pay the employee for a full day when they are sent home, regardless of whether the remainder of the leave will be without pay. Exempt employees by definition are not “hourly”, and employers should not dock their pay in any increment less than a full workday. Doing so may lead to challenges of the employee’s exempt status.

7. Be sure the employee is aware of how they will be kept informed of the status of the investigation. Employees should be told that they must be available during working hours to attend conferences or interviews related to the investigation. Also it’s a good idea to designate days and/or times that the employee should contact their supervisor or Human Resources to check in.

8. An administrative leave may be turned into a suspension without pay if the investigation establishes charges sufficient to justify a suspension but not sufficient to terminate the employee. “Time served” thus becomes the discipline and gets the employee back to work.

9. To avoid disputes later, always follow up with the employee in writing. Send a memo to the employee notifying them that they have been placed on administrative leave, the reason for the leave, whether the leave will be paid or unpaid, and how contact will be maintained during the leave. Also, if your labor contract or organizational policies provide for a hearing or conference with the employee, the memo should state the process and timelines for requesting such a process. Keep a copy of the memo in the employee’s file.

10. It is in your best interest, and the employee’s, to conduct the investigation as expediently as possible. Remember, you are either losing money to pay an employee to stay home, or creating a financial hardship for an employee who is home without pay.

The time to create a policy on administrative leave is not when an incident occurs. If you do not have a policy developed, you should consider creating one. Be sure that your policy is clear and utilized consistently and that your managerial staff are trained on the use of administrative leave for investigation of wrongdoing. Hopefully, you won’t need to use your policy, but it’s best to be prepared.

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Tattoos and Piercings Galore: Implementing a Modern Dresscode

I recently came across a problem area that I thought might be important enough to put into an e-zine. The issue has to do with body piercings and tattoos. What are the employer’s rights with regard to “controlling” employee decisions to decorate their bodies with tattoos or provide uniquely situated piercings? Of course, what I mean by the term “employer rights” involves the current state of employment law as it implies to any right of the employer to control-sanction-prohibit the free expression of employees related to decorating their bodies.

My first response to the above question is to encourage all of you to acquire the book Weirdos in the Workplace by John Putzier, published by Prentiss Hall with a 2004 copyright. This book briefly summarizes, in a somewhat entertaining fashion, the interaction between employment law and a host of issues related to unusual employee behavior in the workplace. For our purposes regarding this e-zine, page 48 from the book will do nicely:

Art is a GenY individualist whose hobby is to “personalize his body.” He has a bolt through his nose, a stud in his tongue, rings through his eyebrows and tattoos in all the right (or wrong) places. Art thinks of himself as, well… exactly that… living, walking “art.”

The book goes on to point out that “self-inflicted diversity” is not a protected class. “Art can express himself as painfully as he wishes when he is off the clock,” but the employer has substantial rights with regard to limiting body art in the workplace. The employer can require the removal of hardware, require that tattoos be covered with long sleeves, turtle necks, etc., can make job assignments where body art cannot be covered and can choose not to employee based on a reasonable decision that in-your-face body art will not present the desired public image.

To put the matter in perspective, body piercings and tattoos are considered by the court in the same category as dress codes. With this in mind, keep in fact the following four generalizations about employment law as it applies to dress codes:

• The courts have always permitted employers to reasonably determine their public image which includes the right to set a dress code. Thus, IBM always had the right to require its employees to wear white shirts or blouses, ties, etc., a right that is enjoyed by any other employer.

• Consistency is a critical factor that is almost always an essential tenet of employment law. That does not mean that all employees have to be treated exactly the same, but any differences should be explainable in business terms.

• Your dress code needs to reasonably reflect the type of work that is being performed. For example, an old court case distinguished between employees who interact with the public and those who have no interaction with the public. In the first case the courts permitted the employer to require that all women wear skirts to work – I did mention that this is a very old court case, did I not? In the second case (no public contact) the courts found that requiring skirts was inappropriate because it had nothing to do with the company’s public image and was a hardship on the employees.

• Sensitivity has to be paid to the relationship between the employer’s right to impose a dress code and issues related to discrimination around gender, race, religion, etc. If the dress code is perceived to discriminate against a protected class with no discernable business necessity, it can get thrown out. For example, requiring all of the young women in your employment to wear miniskirts will get you in serious trouble unless you are Hooters or some other similar establishment. From my perspective, if you do not understand why this is true, you are already in serious trouble.

The bottom line is this, you have, as the employer, a reasonable right to insist on compliance with a dress code which can include covering up tattoos, removing hardware and dressing appropriate for the position. The dress code can be stricter where employees are required to wear a uniform but can be imposed in a non-uniform situation. For example, the Air Force provides very strict guidelines for how Air Force personnel must present themselves. In this regard, note the following:

Females in uniform or in civilian clothes while on duty, may wear one small, spherical, conservative, diamond, gold, white pearl, silver pierced or clipped earring per earlobe; the earrings in both earlobes must match and the earrings must fit tightly without extending below the earlobes. (AFI 36-2903, Table 2.5)

I cannot imagine any of you who receive this e-zine wanting or needing to be this strict. On the other hand, if you believe the above requirement is a little rigid, then go to the internet, find the Air Force Uniform Policy and check what it has to say for men.

Let me close with this thought, the issue for most of you who read this e-zine is not going to be what you are permitted to do under law but rather what you can effectively implement with your employees. Creating a great deal of negative energy in your workplace by abruptly implementing a harsh and restrictive dress code is hardly what you want to do. At the same time, if you find that the body art of certain employees simply won’t cut it, then it is time to beef-up your dress code because the failure to take action will ultimately limit your effectiveness as an organization. If you need some help writing new policy on this matter, I will be glad to help.

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Spotlight on Integrity

I recently received an informational request, asking whether I could provide a one-day training program on the topic of Integrity. Frankly, I was somewhat surprised with this request. For one thing, I have never heard of a full-day training program on a topic like integrity. There are many programs on the general topic of ethics, but to single out one element seemed unusual.

The more I thought about it, however, the more I found myself intrigued by this request. I began to realize that while I have not presented a full-day training program on the topic of integrity, that subject is woven throughout many of the training programs that I do conduct. For example, a program that I frequently conduct deals with the topic of supervision and the effective use of “power.” A basic premise of that course is that power used with integrity builds relationships, while power used without integrity destroys relationships. Likewise, much of the work I do in dispute resolution/prevention emphasizes that integrity, or the lack of integrity, is at the heart of our ability to deal effectively with problems.

As a result of my reflection, I submitted an outline for a training program that was based on two primary premises. First, my sense is that we do not directly seek integrity. Rather it is a fundamental element in the emergence of the desired outcome. Wile integrity for its own sake is quite obviously significant, it is the impact on organizational life that is the justification for creating a training program on the topic. Second, preaching on the topic of integrity will have almost a zero impact on an audience. On the other hand, a group of participants can learn from good examples and stories. More importantly, interactive dialogue will have to be the cornerstone for the design of the training program. After all, I doubt seriously that any of us can hold ourselves up as the model for integrity (let he who is without sin cast the first stone).

With the above two points in mind, I provided the organization the following outline for a training program:

1. Integrity: The gateway to a positive workplace culture.

2. Integrity: The gateway to powerful relationships.

3. Integrity: The gateway to constructive collaboration.

4. Integrity: The gateway to personal happiness.

As part of the work that I do with different organizations, I regularly critique the response to an EEOC complaint. Many of you have been there and know of what I speak. A question that is always asked on the initial EEOC complaint is whether the organization wishes to mediate the problem. I have a standard response. If the complainant has been honest in his or her statement of the complaint, then there is room for mediation. If the complainant has been substantially dishonest in his or her statement, the only thing to mediate is honesty. Mediation doesn’t handle the topic of honesty very effectively.

What I overwhelmingly have found is that complainants often take the position that he or she was a model employee and that the employer, for reasons of age, gender or race, has chosen to mistreat this model employee.

My recommendation not to mediate a case that has a high level of dishonesty in it is predicated on my experience as both an arbitrator and a mediator. As a mediator, I cannot and do not choose to address the subject of integrity. The mediator is not him or herself a part of the substantive discussions. Therefore, it would be difficult for the mediator to bring up the issue of honesty. As an arbitrator, I routinely make a judgment about the integrity of individuals who have testified. The judgment, at times, is extremely harsh. To put it bluntly, the award simply states, “you lied, you lose.”

Returning to the EEOC complaint, an EEOC hearing officer does have the same ability to make an evaluation as to who is “correct” as to their position on the point of dispute. This ruling does involve making a judgment about the integrity of the person’s position. If the complainant has been dishonest, the hearing officer can so rule. If the organization has been dishonest, the hearing officer can also so rule.

I would like to close on a positive note. I am very much looking forward to the opportunity to conduct a one-day training program on the topic of Integrity. It will be a unique, new challenge and I believe it will be a great addition to the body of work that I have been developing related to building a positive culture in an organization.

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